60th Congress, ) HOUSE OF REPRESENTATIVES. J Report 
1st Session . f ] No. 1505. 


PUBLICITY OF ELECTION CONTRIBUTIONS MADE TO 
NATIONAL COMMITTEES. 


April 20, 1908.—Referred to the House Calendar and ordered to be printed. 


vv<,c.Y\. 


Mr. Norris, from the Committee on Election of President, Vice- 
President, and Representatives in Congress, submitted the fol¬ 
lowing 


REPORT. 


[To accompany H. R. 20112.] 


The Committee on Election of President, Vice-President, and 
Representatives in Congress, to whom was referred the bill (H. R. 
20112) providing for the publicity of contributions made to national 
committees, having had the same under consideration, respectfully 
report the bill back to the House with the recommendation that it 
pass with several amendments, as hereinafter specified. 

The publicity of campaign contributions, as affecting national 
elections, has for several years excited considerable discussion. There' 
is no doubt but what there is a general demand for some measure 
that would give publicity to such contributions. Your committee 
have spent a great deal of time in discussing and investigating the 
legal propositions contained in this kind of legislation and in listen¬ 
ing to eminent men from all parts of the country in advocacy of some 
measure providing for publicity of campaign contributions. We 
are convinced that a great majority of the people do not understand 
the constitutional difficulties presented by legislation pf this kind 
on behalf of the Congress. It is a very easy matter to talk in glitter¬ 
ing generalities of the desirability of publicity of campaign contribu¬ 
tions, but an entirely different matter and more difficult task to con¬ 
sider a concrete proposition of framing an effective constitutional 
measure. At the threshold of this discussion we are confronted 
with the proposition that Congress has no constitutional authority 
to regulate or control the election of Presidential electors. The part 
of the United States Constitution referring to the Presidential electors 
is section 1, article 2, of that instrument, and reads as follows: 

Each State shall appoint, in such manner as the legislature thereof may direct, a 
number of electors, equal to the whole number of Senators and Representatives to 
which the State may be entitled in the Congress; but no Senator or Representative, 
or person holding an office of trust or profit under the United States, shall be appointed 
an elector. 














2 


\c\Ov 

PUBLICITY OF ELECTION CONTRIBUTIONS. 

The Congress may determine the time of choosing the electors, and the day on which 
they shall give their votes, which day shall be the same throughout the United States. 

It will be noted that this provision gives to the legislatures of the 
several States the right to * appoint ’’ Presidential electors in such 
manner as they desire. The only inhibition on the power of the 
legislatures is that certain persons are disqualified from being 
appointed electors and that the times of choosing electors and the 
day on which they shall give their votes may be determined by Con¬ 
gress. It seems quite clear from this constitutional provision that 
the legislatures of the several States are supreme, with the limitation 
of the exceptions noted. The Supreme Court of the United States 
has several times had occasion to pass on this provision of the Con¬ 
stitution and there can be no possible doubt but what the law is set¬ 
tled, as above stated. In re Green (134 U. S., p. 379) the Supreme 
Court, in settling this clause of the Constitution, used the following 
language: 

By the Constitution of the United States, the electors for President and Vice-Presi¬ 
dent in each State are appointed by the State in such manner as its legislature may 
direct; their number is equal to the whole number of Senators and Representatives to 
which the State is entitled in Congress; no Senator or Representative, or person hold¬ 
ing an office of trust or profit under the United States, shall be appointed an elector; 
and the electors meet and vote within the State, and thence certify and transmit 
their votes to the seat of government of the United States. The only rights and duties 
expressly vested by the Constitution in the National Government with regard to the 
appointment or the votes of Presidential electors are by those provisions which author¬ 
ize Congress to determine the time of choosing the electors and the day on which they 
shall give their votes, and which direct that the certificates of their votes shall be 
opened by the President of the Senate in the presence of the two Houses of Congress, 
and the votes shall then be counted. 

The sole function of the Presidential electors is to cast, certify, and transmit the 
vote of the State for the President and Vice-President of the nation. Although the 
electors are appointed and act under and pursuant to the Constitution of the United 
States, they are no more officers or agents of the United States than are the members 
of the legislatures when acting as electors of Federal Senators or the people of the 
States when acting as electors of Representatives in Congress. 

The journal of the Constitutional convention discloses that this 
particular clause of our Constitution was the subject of a great deal 
of discussion, and was given very careful consideration. It is there 
disclosed that a proposition to elect the President and Vice-President 
by a vote of the “citizens of the United States” was voted down. A 
proposition was likewise defeated that the President should be elected 
by the “ people.” A motion that the President should be elected “by 
electors to be chosen by the people of the several States” was also 
defeated. Hamilton made the proposition that the election of Pres¬ 
ident 11 be by electors chosen by electors, chosen by the people, ” which 
was likewise defeated. As a compromise, it was finally agreed, with 
the exception of the limitations in the Constitutional clause quoted, 
that the various State legislatures should be allowed to “appoint” 
the electors as they deem best. In 1874 the Committee on Privi¬ 
leges and Elections of the Senate gave this subject a very full con¬ 
sideration, and Senator Morton, of Indiana, in reporting a bill to the 
Senate dividing the States into electoral districts used the folfowing 
language: 

The appointment of these electors is thus placed absolutely and wholly with the 
legislatures of the several States. They may be chosen by the legislature, or the leg¬ 
islature may provide that they shall be elected by the people of the State at large, 
or in districts, as are Members of Congress, which was the case formerly in many 


PUBLICITY OF ELECTION CONTRIBUTIONS. 3 

States, and it is no doubt competent for the legislature to authorize the governor, or 
the supreme court of the State, or any other agent of its will, to appoint these electors, 
lhis power is conferred upon the legislatures of the States by the Constitution of the 
United States, and can not be taken from them or modified by their State constitu¬ 
tions any more than can their power to elect Senators of the United States. Whatever 
provisions may be made by statute, or by the State constitution, to choose electors by 
the people, there is no doubt of the right of the legislature to resume the power at any 
time, for it can neither be taken away nor abdicated. 

This language was approved by the Supreme Court of the United 
States in McPherson v. Bl'acker (146 U. S., p. 35), and on the same 
page of this opinion the court expressly approves the doctrine 
announced in re Green (134 U. S., p. 379). In this same case, in the 
syllabus thereof, the court, through Chief Justice Fuller, states the 
law, as follows: 

Under the second clause of article 11 of the Constitution the legislatures of the 
several States have exclusive power to direct the manner in which the electors of 
President and Vice-President fehall be appointed. 

Such appointment may be made by the legislatures directly, or by popular vote in 
districts, or by general ticket, as may be provided by the legislature. 

In the body of this opinion Chief Justice Fuller says: 

Congress is empowered to determine the time of choosing the electors and the day 
on which they are to give their votes, which is required to be the same day throughout 
the United States, but otherwise the power and jurisdiction of the State is exclusive-, 
with the exception of the provisions as to the number of electors and the ineligibility 
of certain persons, so framed that Congressional and Federal influence might be 
excluded. 

Even if the State constitution provided that Presidential electors 
should be elected by the people there can be no doubt but what the 
legislature of such a State would have authority to disregard such 
constitutional provision and provide for a different method of its own 
selection. The power of the State legislature to control the matter 
is granted by the United States Constitution and can not be abridged 
or taken away in any other manner except by an amendment to that 
instrument. 

While Congress has no direct authority to regulate the election of 
electors, yet as long as State legislatures permit or provide for the 
election of such electors by the people, Congress has an indirect con¬ 
trol over such elections by virtue of its constitutional authority to 
regulate and control the election of Members of the House of Repre¬ 
sentatives. The authority of Congress to control and regulate elec¬ 
tions where Members of the House of Representatives are chosen 
is conferred by section 4, article 1, of the .National Constitution. 
That part of such section referring to this subject is as follows: 

The times, places, and manner of holding elections for Senators and Representatives, 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations, except as to the places of choosing 
Senators. 

This authority conferred by Congress has been exercised several 
times in the past. In 1842 it passed a law to elect Representatives by 
separate districts, and, subsequently, other laws fixing the time of 
election and directed that the election should be by ballot. In 1870 
it passed what was commonly known as the enforcement act and the 
amendment or supplement to that act on February 28, 1871. The 
Supreme Court has several times passed upon this power of Congress 
and given this clause of the Constitution the broadest kind of interpre- 


4 


PUBLICITY OF ELECTION CONTRIBUTIONS. 


tation. In the syllabus of Ex parte S.eibold (100 U. S., p. 372), 
the Supreme Court says: 

In making regulations for the election of Representatives it is not necessary that 
Congress should assume entire and exclusive control thereof. By virtue of that 
clause of the Constitution which declares that “the times, places, and manner of 
holding elections for Senators and Representatives shall be prescribed in each State 
by the legislature thereof, but the Congress may at any time by law make or alter 
such regulations, except as to the place of choosing Senators,’’ Congress has a super¬ 
visory power over the subject, and may either make entirely new regulations, or add 
to, alter, or modify the regulations made by the State. 

In the exercise of such supervisory power Congress may impose new duties on the 
officers of election, or additional penalties for breach of duty, or for the perpetration 
of fraud, or provide for the attendance of officers to prevent fraud and see that the 
elections are legally and fairly conducted. 

The exercise of such power can properly cause no collision of regulations or juris¬ 
diction, because the authority of Congress over the subject is paramount, and any 
regulations it may make necessarily supersede inconsistent regulations of the State. 
This is involved in the power to “make or alter.” 

Mr. Chief Justice Bradley in the body of the opinion in this case says: 

“Make or alter. ” What is the plain meaning of these words? If not under the pre¬ 
possession of some abstract theory of the relations, between the State and National gov¬ 
ernments, we should not have any difficulty in understanding them. There is no 
declaration that the regulations shall be made either wholly by the State legislatures 
or wholly by Congress. If Congress does not interfere, of course they may be wholly 
by the State, but if it chooses to interfere, there is nothing in the words to prevent its 
doing so, either wholly or partially. On the contrary, their necessary implication is 
that it may do either. 

And further on in the same case he uses the following language: 

In what we have said it must be remembered that we are dealing only with the sub¬ 
ject of elections of Representatives to Congress. If for its own convenience a State 
sees fit to elect State and county officers at the same time and in conjunction with the 
election of Representatives,. Congress will not be thereby deprived of the right to make 
regulations in reference to the latter. 

And again in the same case: 

It is the duty of the States to elect Representatives to Congress. The due and 
fair election of these Representatives is of vital importance to the United States. 
The Government of the United States is no less concerned in the transaction than the 
State government is. It certainly is not bound to stand by as a passive spectator 
when duties are violated and outrageous frauds are committed. It is directly inter¬ 
ested in the faithful performance by the officers of election of their respective duties. 
These duties are owed as well to the United States as to the State. This necessarily 
follows from the mixed character of the transaction—State and national. A viola¬ 
tion of duty is an offense against the United States, for which the offender is justly 
amenable to that Government. No official position can shelter him from this respon¬ 
sibility. In view of the fact that Congress has plenary and paramount jurisdiction 
over the whole subject, it seems almost absurd to say that an officer who receives or 
has custody of the ballots given for a Representative owes no duty to the National Gov¬ 
ernment which Congress can enforce, or that an officer who stuffs the ballot box can 
not be made amenable to the United States. 

The doctrine laid down in this case has been expressly approved 
by the Supreme Court of the United States in several subsequent 
opinions. In Ex parte Yarbrough (110 U. S.) the Supreme Court, in 
speaking of the power of Congress in this regard, expressed itself as 
follows: 

Now, the day fixed for electing Members of Congress has been established by Con¬ 
gress without regard to the time set for election of State officers in each State, and but 
for the fact that the State legislatures have, for their own accommodation, required 
State elections to be held at the same time these elections would be held for Congress¬ 
men alone at the time fixed by the act of Congress. 


PUBLICITY OF ELECTION CONTRIBUTIONS. 


5 


Will it be denied that it is in the power of that body to provide laws for the proper 
conduct of those elections; to provide, if necessary, the officers who shall conduct 
them and make return of the result, and especially to provide, in an election held 
under its own authority, for security of life and limb to the voter while in the exer¬ 
cise of this function? Can.it be doubted that Congress can by law protect the act of 
voting, the place where it is done, and the man who votes, from personal violence or 
intimidation and the election itself from corruption and fraud? 

If this be so, and it is not doubted, are such powers annulled because an election 
for State officers is held at the same time and place? Is it any less important that the 
election of Members of Congress should be the free choice of all the electors because 
State officers are to be elected at the same time? 

These questions answer themselves; and it is only because the Congress of the United 
States, through long habit and long years of forbearance, has, in deference and respect 
to the States, refrained from the exercise of these powers that they are now doubted. 

But when, in the pursuance of a new demand for action, that body, as it did in 
the cases just enumerated, finds it necessary to make additional laws for the free, 
the pure, and the safe exercise of this right of voting, they stand upon the same ground 
and are to be upheld for the same reasons. 

It is said that the parties assaulted in these cases are not officers of the United States 
and their protection, in exercising the right to vote, by Congress does not stand on the 
same ground. 

But the distinction is not well taken. The power in either case arises out of the 
circumstance that the function in which the party is engaged or the right which he 
is about to exercise is dependent on the laws of the United States. 

It will thus be seen that the power of Congress to regulate and control 
all elections at which Repei;sentatives in Congress are chosen is prac¬ 
tically without limit. It can protect such elections by any safeguard 
it sees fit to indicate. It can completely control and supervise in the 
minutest detail all such elections, regardless of what other officers 
may be voted for thereat. By preventing illegal voting at such 
elections and ballot-box stuffing or fraudulent counting of the votes, 
it not only controls the election as to Representatives in Congress, 
but indirectly controls and regulates all other officers, whether State, 
county, or municipal, if they are voted for at the same election. It 
would follow therefore that if electors for President and Vice-President 
were voted for at the same election where Members of the House of 
Representatives were chosen, Congress would practically have the 
same supervision and control over them as they would have over 
Representatives. 

If we exercise all the power given us by the Constitution, we would 
. be required to go into every precinct in the United States and practi¬ 
cally take charge of every ballot box in all elections at which Members 
of the House of Representatives are elected. We would modify, if not 
abrogate, all the laws of the different States governing these elections. 
If we undertook to provide for publicity of campaign contributions to 
the extent of our power, it would be necessary that some provision 
should be made for the publicity of such contributions regarding every 
office and every candidate, whether National, State, county, or munici¬ 
pal at every Congressional election. Inasmuch as all the State laws 
and regulations governing these elections are fairly satisfactory, and 
many of the States have already provided for publicity of campaign 
contributions in all elections, we have deemed it impractical and 
unwise to go to this extent. 

The different States have no authority to control national com¬ 
mittees, and we have concluded that our efforts should, for the pres¬ 
ent at least, be confined to publicity of expenditures made by such 
committees and persons as are not within the jurisdiction of any 


6 PUBLICITY OF ELECTION CONTRIBUTIONS. 

State. We have therefore reported a bill that undertakes to regu¬ 
late such contributions only in cases where the contributions are 
made for the purpose of influencing Congressional elections in more 
than one State. It is not claimed for the bill, which we recommend, 
that it will be a complete remedy. It is admitted that supplemental 
legislation will be required on the part of the different States. In 
nineteen of the States there are already laws of such character in 
force. It is believed that every State will follow and that soon we 
will have similar laws in all the States, which, in connection with the 
bill which we recommend, will make a complete system without in 
any way interfering with or abrogating any of the State laws, and 
without making it necessary to provide for the immense amount of 
machinery that would be demanded in carrying out a national law 
which exhausted the Constitutional limitations of Congress. 

Your committee recommend the following amendments: 

(1) Amending the title to read as follows: “A bill providing for the 
publicity of contributions made for the purpose of influencing or con¬ 
trolling, in two or more States, elections at which Representatives to 
the Congress of the United States are elected.’’ 

And that the following amendments be made to the bill itself— 

(2) In line 9 of section 1, commencing with the word ‘‘but,” strike 
out the balance of the section. 

(3) In line 24, page 3, after the words “sworn to,” insert in lieu 
thereof “by said treasurer.” 

(4) In line 23, page 5, strike out the word “fund” and insert in 
lieu thereof “private funds for the purpose of influencing or con¬ 
trolling, in two or more States, the result of an election at which 
Representatives to the Congress of the United States are elected.” 

(5) In line 24, page 5, commencing with the last word of said line, 
strike out down to and including the word 11 question ” in line 2, page 6. 

(6) In line 3, page 6, after the word “telephone,” insert the \tord 
“service.” 

(7) At the end of the bill add a new section, as follows: 

Sec. 11. All prosecutions under this act shall be commenced within one year after 
the commission of the offense. 


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